Opinion
No. HHD-CV-03-0822570
June 14, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#112)
This motion raises the question of whether the family car doctrine can apply when the car is not owned, but is leased for a period of several years, by the non-driver defendant. I conclude that the common-law family car doctrine can apply to such a lessee in Connecticut.
On January 21, 2003, the plaintiffs, David Auth and his wife, Cindy Auth, filed a four-count complaint against the defendants, Steven Wesley and Subaru Leasing Corporation. Therein, the plaintiffs allege the following facts. On January 17, 2001, Rachel Wesley was driving a car which was leased by her husband, Steven Wesley. Rachel Wesley crossed a double yellow line and collided with a car driven by David Auth, who sustained severe injuries. The accident was caused by the carelessness and negligence of Rachel Wesley. In count one, David Auth claims, inter alia, that Steven Wesley is liable for the injuries Rachel Wesley caused because she was operating the car under the common-law family car doctrine. In count two, Cindy Auth incorporates the count one allegations and claims that Steven Wesley is liable for her loss of consortium.
On November 6, 2006, Steven Wesley filed a motion for summary judgment as to counts one and two on the grounds that he was not the operator or owner of the vehicle, that Rachel Wesley was not his agent, servant or employee and that General Statutes § 52-182 does not apply because he did not own the car involved in the accident. On January 9, 2007, the plaintiffs filed a memorandum in opposition, in which they argue that counts one and two are based on the common-law family car doctrine, not § 52-182. The complaint does not reference § 52-182.
On February 14, 2007, Steven Wesley filed a supplementary memorandum of law in support of the motion for summary judgment in which he argues that because he is a lessee and the common-law family car doctrine requires a defendant own the car involved in the accident, summary judgment must be granted. The matter was subsequently argued to the court on the short calendar.
The affidavit of Steven Wesley indicates that Rachel Wesley is his wife and was operating the vehicle he leased long-term from co-defendant Subaru Leasing Corporation (Subaru) with his permission but not as an employee, agent or servant. Steven and Rachel Wesley's combined deposition testimony shows that he handled payment of family bills, leases and car insurance arrangements within the marriage; that he knew that she customarily transported their son to school; and she was transporting their son home from school at the time of the accident. The lease document between Mr. Wesley and Subaru is a standard three-year auto lease under which Mr. Wesley agreed to insure and maintain the vehicle, which the lease states was to be used primarily for "personal, family or household purposes."
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts." (Citation omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006).
Steven Wesley argues that he has no liability for the alleged actions of his wife under § 52-182 because he did not own the car she was driving. General Statutes § 52-182 provides in relevant part: "Proof that the operator of a motor vehicle . . . was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle . . . was being operated as a family car . . . within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption."
"The purpose and effect of the enactment of § 52-182 was not to affect or create substantive rights; its purpose was merely to govern procedure." Hunt v. Richter, 163 Conn. 84, 89-90, 302 A.2d 117 (1972). Section 52-182 "was enacted as an `implementation' to aid a plaintiff in his proof, where the operator and owner are of a certain designated relationship." Id., 90. A plaintiff that is not able to use the presumption afforded by § 52-182 continues to have a viable claim if the "facts, without regard to the provisions of [§ 52-182], afford a sufficient basis for finding that the vehicle is a family car." Id. It is not necessary for a plaintiff attempting to establish liability under the common-law doctrine to satisfy § 52-182 because the statute merely raises a presumption that the motor vehicle in question was being used as a family car. In the present case, the plaintiffs do not make reference to § 52-182 in their complaint; instead, the complaint alleges that Rachel Wesley was operating the car under that doctrine. The plaintiffs' memorandum in opposition to the motion for summary judgment concedes that the plaintiffs are not relying on the § 52-182 presumption. Accordingly, further analysis of § 52-182 is not necessary. Instead, the court must consider whether the facts afford a sufficient basis for establishing a common-law family car doctrine claim.
The defendant argues that the common-law family car doctrine stems from a defendant's ownership of the family car. The defendant reasons that as a lessee he did not own the car and accordingly, has no liability. But analysis of Connecticut and national family car doctrine legal material reveals that the applicability of the doctrine hinges on control, not ownership.
"The family car doctrine is a common-law rule providing that, `when a motor-car is maintained by the paterfamilias for the general use and convenience of his family, he is liable for the negligence of a member of the family having general authority to drive it, while the car is being used as a family car . . .'" Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 9, 882 A.2d 597 (2005), quoting Stickney v. Epstein, 100 Conn. 170, 178-79, 123 A. 1 (1923). The doctrine evolved from the principle of respondeat superior. Silverman v. Silverman, 145 Conn. 663, 667, 145 A.2d 826 (1958); O'Keefe v. Fitzgerald, 106 Conn. 294, 298, 137 A. 858 (1927). "Thus, the right of the plaintiffs to recover rests on their ability to establish facts which render the family car doctrine applicable, and consequently, the defendant presumptively liable as the owner of such a family car." Cook v. Nye, 9 Conn.App. 221, 225, 518 A.2d 77 (1986). "As [the Supreme Court] explained in the seminal case of Wolf v. Sulik, 93 Conn. 431, 106 A. 443 (1919), the family car doctrine is grounded in the principle that `every man who prefers to manage his affairs through others . . . remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority.'" Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 9. "When a member of a family maintains a car for the pleasure, use and convenience of the family, and its purposes, he or she makes such pleasure and use a personal concern, thereby making those family members who use or enjoy the car his or her agents, as if they were pursuing the affairs of the owner." (Emphasis added.) Cook v. Nye, supra, 9 Conn.App. 225-26.
"Applicability of the family car doctrine is dependent upon the connection that the member of the household has with the car. He or she must own, maintain, or furnish the car, and have or exercise some degree of control over its use . . . Usually, liability under the doctrine is sought to be imposed on a member of a household who owns the car. It is not necessary to fit both these rules, however. Generally, control over the use of the car rather than legal title is dispositive . . . although ownership is significant." (Citations omitted; emphasis in orig.) Id., 226. "So far as ownership goes, the right of control over the vehicle's use, rather than legal title, is generally made the test . . . Liability under this doctrine is not confined to owner or driver. It depends upon control and use." (Citation omitted; internal quotation marks omitted.) Tuttle v. Trent, 3 Conn. Cir.Ct. 591, 594, 222 A.2d 586 (1966).
Treatises agree that control, and not ownership, is the element that must be analyzed when determining whether the doctrine applies to a particular defendant. "Although ownership of the vehicle may be a significant factor, it is not controlling; control over the use of the vehicle is the critical element. The owner or provider of the vehicle must have given the actual or implied consent to the operator to drive the vehicle." (Emphasis added.) J. Lee B. Lindahl, Modern Tort Law (Rev. Ed. 1988) § 34.07, p. 34-11-12. "To come within the application of the doctrine, the defendant must own the automobile, or be in control of its use, or at least have some recognized property interest in it or supply it, and he must have made it available for family use . . ." (Emphasis added.) W. Prosser W. Keeton, Torts (5th Ed. 1988) § 73, p. 524-25. "The doctrine of the family car holds the owner, or person with control of the vehicle, or `head of the family,' liable for the negligent driving of . . . the spouse using the vehicle with the . . . owner-spouse's permission, but for the driver's own pleasure or business." (Emphasis added.) 2 F. Harper, F. James O. Gray, Torts (3d Ed. 2000) § 8.13, p. 702. Although ownership of the family car is recognized as a way to trigger the doctrine, the treatises recognize that the doctrine can be applied where the head of a family has control over the use of the vehicle. Because a long-term lessee often has control over a leased car, the principles behind the common-law family car doctrine support applying it to such lessees.
Although no Connecticut courts have directly addressed the applicability of the family car doctrine to a lessee, a number of cases suggest that such an application is proper. In Cogan v. Chase Manhattan Auto Financial Corp., supra, 276 Conn. 1, the Supreme Court had to determine whether a lessee was a proper defendant in a negligence claim brought under the common-law family car doctrine. In Cogan, the driver lived with her stepfather who "furnished a car for his family's general use through a lease . . ." Id., 10. The daughter was involved in an accident while driving the leased family car. Although the stepfather was a lessee and did not own the vehicle, the court found that the stepfather "met the essential factual prerequisites for a properly named defendant under the family car doctrine . . ." Id. The analysis in Cogan indicates the Supreme Court's willingness to apply the family car doctrine to a lessee.
In Cogan, the plaintiff attempted to bring an action pursuant to General Statutes § 52-593, which authorizes a new action where a prior action has failed "by reason of failure to name the right person as defendant therein . . ." General Statutes § 52-593. Specifically, the plaintiff argued that the driver's stepfather, who was a defendant in a prior action, was not the "right" defendant because he did not own the vehicle involved in the accident. Cogan v. Chase Manhattan Auto Financial Corp., supra, 276 Conn. 8.
A review of the Connecticut common-law family car doctrine jurisprudence rebuts the defendant's argument that the common-law doctrine only applies to owners. In Connecticut, a defendant under the common-law doctrine "must own, maintain, or furnish the car, and have or exercise some degree of control over its use." (Emphasis added.) Cook v. Nye, supra, 9 Conn.App. 226. Stated another way, under the common-law doctrine, "[w]hen a member of a family maintains a car for the pleasure, use and convenience of the family, and its purposes, he or she makes such pleasure and use a personal concern, thereby making those family members who use or enjoy the car his or her agents, as if they were pursuing the affairs of the owner." (Emphasis added.) Id., 225-26.
In Malizia v. Anderson, 42 Conn.Sup. 114, 602 A.2d 1076 (1991), a plaintiff brought a claim pursuant to the common-law family car doctrine and § 52-182. The claim was deemed sufficiently pled even though the plaintiff was unable to allege that the defendant owned the family car. The vehicle in Malizia was owned by a corporation of which the defendant father was a principal stockholder. Id., 115. While living in her father's household the defendant's daughter used the vehicle as a "family car." Id. The court found allegations that the defendant father exercised control over the car and furnished the car to his daughter constituted a sufficiently pleaded family car doctrine claim. Id., 119. Malizia stands for the proposition that a family car doctrine claim "does not require an allegation that the defendant owned the car." Id.
The Superior Court implicitly addressed whether a lessee can be liable under the family car doctrine in Dunbar v. Mutone, Superior Court, judicial district of Fairfield, Docket No. CV 00 0377051 (October 24, 2002, Rush, J.). Dunbar applied the Cook v. Nye proposition that "control over the use of the car rather than legal title is dispositive" to a fact pattern involving a leased car. In Dunbar, the lessee's daughter was operating the leased car when she collided with a car carrying the plaintiff. The plaintiff sued the lessee and her husband under the family car doctrine. The lessee's husband moved for summary judgment because he was not the lessee of the car and claimed no connection to it. The court denied the motion for summary judgment, despite his being neither the owner or lessee of the vehicle, on the ground that the husband's control over the use of the car was the dispositive issue.
The principles and policies behind the family car doctrine support applying the doctrine to lessees. The Supreme Court has recognized that the family car doctrine is "a logical outgrowth of the common law principle of respondeat superior . . ." O'Keefe v. Fitzgerald, supra, 106 Conn. 298.
"Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another." (Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., 249 Conn. 709, 720, 735 A.2d 306 (1999). As stated earlier, the public policy justification for the family car doctrine is that when the head of the family chooses to conduct his or her activities through a family member, he or she should be required to answer for the injuries to third parties. The family car doctrine's public policy and the principles of respondeat superior are equally applicable to cars that are owned and cars that are leased.
The mere fact that title to the vehicle remains with a lessor should not relieve the long-term lessee from liability under the family car doctrine if he maintains and controls that vehicle and it is utilized as a family car. In the present case, public policy requires that Steven Wesley be subject to liability under the family car doctrine if he maintained the car for the pleasure, use, and convenience of his family and, when the accident occurred, Rachel Wesley was operating the car for a family purpose. There is sufficient evidence presented in connection with this motion to raise a genuine issue of material fact in this regard.
It is also important to note that the family car doctrine originated in the early twentieth century, at a time when new cars were almost always purchased. Today, many consumers are as likely to consider a long-term lease as a purchase when shopping for a new car. A lessee has a property interest in the leased vehicle, namely, control over the vehicle's use. Like an owner, a lessee maintains and insures his or her car. A lessee, like an owner, "controls" a leased car and may have the authority to allow someone to drive the car. Because a long-term lessee operates and controls a car as an owner would, the family car doctrine and its policy of encouraging safety should apply to both owners and long-term lessees.
In Durso v. A.D. Cozzolino, Inc., 128 Conn. 24, 20 A.2d 392 (1941), the Supreme Court determined that the family car doctrine applied where the car in question was owned and maintained by a family corporation rather than a family member. The court stated that "to hold otherwise, would make it possible, in the case of a family corporation such as the one before us, to avoid liability under the family car doctrine by having automobiles for the use of the families of its officers owned and maintained by the corporation." Id., 30. As in Durso, it would contravene public policy to allow the head of a family to avoid liability for the actions of his or her family members by leasing rather than buying a vehicle. Steven Wesley should not be permitted to avoid liability under this doctrine merely because he decided to lease rather than purchase the family car.
Like Connecticut, the majority of the states that have adopted the family car doctrine use the word "owner" when discussing liability, but do not require ownership in order to impose liability. Control, not ownership, is the predominant element necessary to maintain an action under the family car doctrine in other states. See, e.g., Walston v. White, 213 Ga.App. 441, 442, 444 S.E.2d 855 (1994) ("To come within the application of the doctrine, the defendant must own the automobile, or at least have some recognized property interest in it or supply it . . . [T]he principal factor is authority and control of the vehicle, and this is not necessarily determined by title to the vehicle or payment for the expenses of operation. Agency, not ownership, is the test of liability."); McPhee v. Tufty, 623 N.W.2d 390, 394 (N.D. 2001) ("[T]o be liable under the family car doctrine, the head of the household must furnish, but need not own, the vehicle . . .") Tart v. Martin, 137 N.C.App. 371, 374, 527 S.E.2d 708 (2000) ("[I]n determining which family member is liable under the [family car] doctrine, the issue is one of control and use of the vehicle. In deciding who has control of a vehicle, ownership is not conclusive. Rather, the central inquiry is who maintains or provides the automobile . . ."); Arizpe v. Vankirk, 204 Or.App. 372, 376, 129 P.3d 718, cert. denied, 340 Or. 672, 136 P.3d 742 (2006) ("Evidence of control over the use of the vehicle may serve as an indication that someone other than the title owner has an ownership interest as the `beneficial' owner of a car"); Marcus v. Everett, 195 Neb. 518, 528, 239 N.W.2d 487 (1976) ("Nebraska case law, makes it clear that the head of the family sought to be held liable does not even have to be the owner of the car . . . The beneficent purposes of the doctrine would be thwarted by an over-technical interpretation"); Mortensen v. Knight, 81 Ariz. 325, 332, 305 P.2d 463 (1956) ("[T]he family [car] doctrine . . . rests not on the ownership of the vehicle but upon the control and use"). As the preceding cases indicate, authority and control over the car is the focus of most courts.
A recent Tennessee case is instructive because a court applied the family car doctrine to a defendant lessee despite the use of the word owner in that state's common law. Thurmon v. Sellers, 62 S.W.3d 145 (Tenn.Ct.App. 2001). In Thurmon, the Court of Appeals of Tennessee determined that a prima facie case under the family car doctrine existed where a father leased a pickup truck for his son's use. "In order for the family [car] doctrine to apply in Tennessee, two requirements must be met, namely, that the head of the household maintains the vehicle for the purpose of providing pleasure or comfort to his or her family and that the driver was using the vehicle at the time of the injury-producing accident in furtherance of that purpose and with either the express or implied permission of the owner." Id., 156. In Thurmon, the defendant father leased the vehicle for his son's personal use and for use in the father's business. At the time of the accident, the defendant's son was driving to look at golf clubs and the court determined that the son's purely personal use furthered one of the purposes for which the defendant father leased the vehicle. Accordingly, the court determined that the father, a lessee, was a proper family car doctrine defendant. The common-law doctrine in both Connecticut and Tennessee requires that the head of the household maintain the vehicle for the purpose of providing pleasure or comfort to his or her family. The Thurmon court found that leasing satisfied the maintenance element. As in Thurmon, the doctrine may apply in the present case where Steven Wesley leased the car for the use of his family and his wife was using the car for a family purpose when the accident occurred.
Finally, the defendant relies inappropriately upon a line of cases where the family car doctrine was deemed inapplicable to rental cars. The defendant cites Orozco v. Groll, Superior Court, judicial district of New Britain, Docket No. CV 000499892 (March 13, 2001, Shapiro, J.), which declined to extend the family car doctrine to a rental car, and relied upon the analysis of Montefusco v. Shahhein, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 0057772 (December 9, 1997, Corradino, J.). In Montefusco, a seventeen-year-old who was not a listed driver on the rental contract had an accident while driving a car his mother rented from Avis. The plaintiff sued Avis, the owner of the car and claimed that the public policy of the family car doctrine precluded Avis's liability defense predicated upon the driver being unauthorized. The court noted that unlike the head of a family, "[t]he only benefit Avis gets and should be expected to get is the rental fee . . . [I]t would not be fair to impose an additional cost of ownership on Avis . . . This has nothing to do with the fair ambit of the family car doctrine and why it was established." Id.
The rental car cases are distinguishable from the present action because in those cases plaintiffs attempted to hold rental car companies, not family heads, liable under the family car doctrine. In contrast, subjecting a family head long-term lessee to liability under the family car doctrine is logical and comports with the reason why the doctrine was established. Additionally, a person renting a car does not have the indicia of ownership and control that an owner or long-term lessee has. Accordingly, the rental car cases are inapplicable to the current case.
In summary, Connecticut and national case law focuses on control over the use of the car, rather than mere ownership, in imposing the family car doctrine. Additionally, long-term leasing rather than owning does not affect the respondeat superior principal that is the basis for the family car doctrine. Lastly, public policy supports application of the family car doctrine to long-term lessees. For these reasons, the defendant's argument that, because he did not own the car, he cannot as a matter of law be liable under the family car doctrine is incorrect. The defendant's motion for summary judgment is denied.